New Mexico: Marcia Southwick reviews Guardianship laws from Santa Fe

KSFR Santa Fe Public Radio KSFR Santa Fe Public Radio

Boomers Against Elder Abuse – a FB community

Notes from Marcia Southwick’s talk on Sunday July 19, 2015 at the Journey Santa Fe Lecture Series, and KSFR Radio.

What is guardianship/conservatorship?

Different states use these two different terms in different ways, but I will refer to all of it as guardianship to simplify. Guardianship is a legal process by which a person is deemed incapacitated and some if not all of their constitutional rights are removed. Elders as they grow incompetent need court intervention if no one is caring for them. The guardian then makes surrogate decisions in the “best interest” (very subjective and open-ended) of the ward. This can be good or bad, depending on the situation. Here are some of the rights you lose
1) The right to handle your own money or to make decisions about who gets to spend it. No right to look at a bank statement. Court appointees and others charge the estate against the elder’s and family’s will. Charges are approved by the court, often rubber stamped without proper auditing. 
2) Freedom to make any decisions. You can be placed in a facility by the guardian/conservator, and your home will sold out from under you along with all of your possessions to pay for your care in the home, and the fees to the guardian you never wanted.
3) No right to marry, vote, or sign a contract to hire your own attorney to fight back.
4) A guardian or conservator can restrict the family from visiting you if they complain. The elder can be charged up to $100 per hour for each visit by a family member.
5) Your family loses the right to fight back in court to free you. The guardian/conservator is entitled to use YOUR money to fight your family in court—this way they keep the lucrative position.
6) Often there is no due process. An emergency petition is filed without your knowledge. A temporary guardian is installed and the charging begins. If assets are at stake, very rarely is a temporary guardianship/conservatorship annulled. The estate is frozen for “services” and care. The situation lasts until the elder dies and the money depleted.
7) Incapacity proceedings are done by a court appointed committee. If you have had a recent capacity test that proves you should keep your rights, the court will not admit this into evidence. 
8) The petitioning attorney in our state chooses the guardian ad-litem–the lawyer who represents your best interest (in their personal estimation), the court investigator who goes into your home and decides if your situation is unfit—no proof needed, just opinion. The petitioning attorney also chooses the medical professional. Everyone working in the court knows one another, so that if substantial assets are involved, they all have a stake in making a lucrative living as a team. The conflicts of interests are frightening.

How Did I Get Involved?

I first became interested in guardianship/conservatorship because a friend of mine in Florida came home from a vacation to find his freedoms taken away. He was not allowed to defend himself in court (court ordered not to appear), and he was then confined to his home on restricted visitation, unable to see his loved ones more than one or two hours a day, with special instructions as to what could be discussed. His phone and all photos of his loved ones were removed. After the case was over, his companion was gag ordered from discussing the case and forced to sign a no sue agreement. The estate was charged approximately 1 million per year, and all records of what happened were sealed to supposedly protect the privacy of the ward. All of this occurs behind closed doors protected from public scrutiny. And it happens all over the U.S.

Why is this all allowed to happen?

1) First of all, it is occurring in all 50 states. The way guardianships and conservatorships are handled is up to each state. County probate courts have the power to remove your constitutional rights because the Federal courts cannot interfere due to “the probate exclusion” which ruled long ago that Federal courts don’t have jurisdiction over probate courts. I don’t know the details of this law, but that’s the gist of it—explaining why it is so difficult to get the Feds involved.
2) State reform occurs piecemeal. We are trying to change that.
3) The people involved in the reform are also the very same people who make money by participating in guardianships.
4) Gag orders issued by the court prevent the families from speaking out. No sue agreements signed by heirs keep lawsuits from exposing the professionals engaged in the process.
5) Families can’t fight back because the guardian can use the elder’s money to battle them off. Guardians also isolate the elder as retaliation. This is true in most of the cases I have studied—there are hundreds available on my FB page, Boomers Against Elder Abuse.
6) Lack of central data bases that register guardianships, and lack of outside monitoring of expenses charged. No one knows how many guardianships have been instituted throughout the nation. We don’t even know how many there are in our state. The opportunity to exploit elders and others under guardianship is basically a free-for-all. Some guardians are incredibly good people. Others are mercilessly exploiting their wards.

How does this happen? 

1) Most often it happens when a family has a conflict over an elder’s care or estate, and somebody makes the mistake of going to an elder attorney who is associated with professionals in the guardianship business. This includes guardianship companies. The attorney will recommend third-party guardianship as a way to make objective decisions. They will never tell you that this means loss of constitutional rights for the elder. This can basically amount to a money grab if there are assets.
2) It can happen in a nursing home. It has now been reported by the New York Times that if bills aren’t paid, the home will petition for guardianship and control over the patient’s assets and person. One advocate found 7 court cases of this in Missouri by the same nursing home in one day.
3) The standards have changed from “incompetent” to “incapacitated,” which means that people can be guardianized for breaking a hip, or after having an accident. This opens the door very wide to predators—usually Adult Protective Service workers or Social Workers lurking in hospitals tipping off guardianship companies or the professionals they work with.
4) ANY interested party can initiate a petition. A neighbor, a friend, a child, your doctor, or attorney can unknowingly petition or have a petition filed on your behalf. They want to help, but then you end up in a lock-down unit with no rights. This happened to Willie Berchau of Texas, in his 90s. In Willie’s case, he refused rehab after a hernia operation and a health worker decided he should be “protected.” Only after a friend of his called the press was he set free after two years of lock-down in an assisted living facility and hundreds of thousands of his dollars spent.
5) There is no recourse for people stuck in this situation. They can’t hire their own attorneys, and the family cannot free them, even they drain all of their assets fighting back in the courts. The guardian, of course, is depleting the elder’s assets in any of these legal battles. Many families go broke trying to restore their loved ones rights. Law enforcement and the D.A. will tell families that all of this is a civil matter, and they are sent back to the very court that did this to them.
6) Probate courts do not have sufficient evidence standards. Most of what is claimed is never proven. The judge listens to attorney claims and operates often according to hearsay. This is reported throughout the U.S.

What can you do to prevent this?

1) Education. Go to Boomers Against Elder Abuse to Learn More. There is a list of things you can do in the notes section, as well as 300 cases that show how this railroading works. 
2) Prevention: There is no silver bullet. It is important to have a health directive, Durable Power of Attorney, and a Living Will and Trust. These will help discourage someone from filing a petition. NOTE: However, if a petition is filed, the court can throw out all of your documents and they will be treated pretty much like toilet paper. Individual states are trying to change this. Ward’s rights and Power of Attorneys need to be protected. This isn’t happening yet. 
3) The best prevention is to tell any family in conflict to resolve their differences without going to court. Court produces completely unpredictable consequences.
4) If you go into the hospital or to a doctor, be sure a loved one goes with you. An elder alone makes them a target. Be sure care of the elder is in place before they experience problems. Keep your loved one in state. Don’t live in another state. It’s usually not allowed for a child from outside the state to be chosen for guardianship should the matter arise.
5) Instruct your loved ones not to go to free seminars about coordinated health care or anything to do with information about what you should do in your future. They are gathering info from you and suggesting that you use their company to make decisions for you. They won’t tell you that they are a guardianship company who can have an attorney petition to deem you incapacitated if you need their help.
6) Stay social. Surround yourself with friends and family. Elders living alone are the prime targets.

What am I doing to combat the abuses?

An Emmy-nominated film maker, Angelo Gugliemo, and I are working on a film about a Tennessee case. Ginger Franklin, at 52, fell down the stairs and ended up in a coma for a short time. She awoke 3 weeks later to find all of her constitutional rights removed, her property in the hands of the guardian, no ID, no money, or driver’s license. The guardian then put her into a group home where Ginger was forced into labor under threat of being put in a lock-down facility. After two years, she escaped with the help of advocates. It could happen to YOU.

A case that exemplifies the problems in guardianship. 

Ernestine Franks, of Florida, was aging to the point where her children were worrying about her care. Just as in many families do, conflicts arose. One of her three sons consulted an attorney who advised that they should petition for guardianship. The result was that a third-party took over, and Ernestine has been trapped for two years, spending hundreds of thousands for services she didn’t’ need or want. The sons have since united to try to free their mother to no avail. This is a sad because because the guardianship should be reversed. There is no recourse for families in this situation. The guardian and the court will not let go once they’ve got the money in their hands. Instead, the guardian is restricting visits, and charging Ernestine $100 per hour for any visits with her children. The money being made off of Ernestine is supporting 5 or 6 people in the big business of Guardianship. This predatory industry must reform itself if it ever wishes to be looked at with respect. Every day new accounts of abusive guardians and conservators are coming out in the news. It won’t be long before the entire industry is labeled “America’s Dirty Little Secret.” That’s already what Money Magazine has called it.